Law Commons^™

The Pieces Of Housing Integration, Kristen Barnes

College of Law - Faculty Scholarship

Notwithstanding the enactment of the Fair Housing Act in 1968, accomplishing racially-integrated housing across the United States remains an unattained goal. The costs associated with this failure are innumerable. Black Americans have endured harms in many areas, including health, education, wealth, and employment. More broadly, the nation has incurred considerable socioeconomic and political costs. In the interdisciplinary book, Moving Toward Integration, authors Richard Sander, Yana Kucheva, and Jonathan Zasloff analyze why the promise of racially-integrated housing remains unfulfilled and identify noteworthy strategies for changing course. Engaging with their arguments, this article highlights several structural impediments to altering racial housing …

Reframing Housing: Incorporating Public Law Principles Into Private Law, Kristen Barnes

College of Law - Faculty Scholarship

A new public-private law paradigm is developing with respect to the relationship of the state to private contracts. The paradigm melds private law concepts like unconscionability, good faith, and fair dealing with the public human rights principles of dignity and vulnerability. I trace this paradigm shift in the context of the housing law of Spain, where several rich cultural and legal resources have inspired a new sensibility with regard to residential mortgage loan contracts, rental agreements, and the overall duties and obligations of governments to address the citizenry's housing needs. Although this reorientation reflects decisions from the European Court of …

My Grandmother Was Mrs. Palsgraf: Ways To Rethink Legal Education To Help Students Become Lawyers, Rather Than Just Thinking Like Them, Ian Gallacher

College of Law - Faculty Scholarship

This article uses my family history, and its striking similarities to the Palsgraf case, as a starting point for a consideration of the ways law schools teach the law to their students, the problems that approach appears to cause, and some possible alternative, and potentially healthier, approaches to legal education.

My grandmother, grandfather, mother, and uncle were all in a house that was blown-up and destroyed by a bomb during the Second World War. And while the cause of the explosion was very different to that in Palsgraf, the fact of an explosion that drastically changed the lives of …

"No Country For Old Men": Junior Associates And The Real-World Practice Of Law, Ian Gallacher

College of Law - Faculty Scholarship

Law schools are designed to teach students about the doctrine of law and to help them prepare their skills to practice law. There are some practical aspects of law practice, though, that are rarely if ever discussed in law school. Perhaps this is because of an assumption that law firms will make these issues clear to the students they hire as associates, or perhaps it is because of a belief that such information has no place in the curriculum of an academic institution.

Whatever the reason, this is information law students should have as they begin to think about where …

Enigma: A Variation On The Theme Of Legal Writing’S Place In Contemporary Legal Education, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

Erasing Boundaries: Inter-School Collaboration And Its Pedagogical Opportunities, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

Lights! Camera! Law School?: Using Video Interviews To Enhance First Semester Writing Assignments, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

"When Numbers Get Serious:" A Study Of Plain English Usage In Briefs Filed Before The New York Court Of Appeals, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

Thinking Like Non-Lawyers: Why Empathy Is A Core Lawyering Skill And Why Legal Education Should Change To Reflect Its Importance, Ian Gallacher

College of Law - Faculty Scholarship

This article is an exploration of some of the issues raised by the recent Carnegie Report on legal education, and contains a recommendation that law schools change the way they teach especially first year law students in order to make them more empathetically aware of the circumstances by which the court opinions they study arose and the effects those opinions will have on others. This recommendation is made not just because it will make students better people, but also because it will make them better lawyers; the article analyses in depth the dangers inherent in an overemphasis on the “logical” …

Reisurance: The Silent Regulator?, Aviva Abramovsky

College of Law - Faculty Scholarship

Abstract This Essay suggests that a discussion on insurance regulation should include a consideration of the effect reinsurance may have on the behavior of insurers. The Essay reviews the traditional types of reinsurance, and considers the ability of private reinsurance contracts to produce insurer action. This essay suggests if reinsurance is not included in a holistic examination of the field, its realities have the capacity to misdirect insurance regulatory assumptions. Moreover, reinsurance works as a source of independent and often unexamined contractual influence on insurer activity, and as a potential source of interference with regulatory proposals. Even though reinsurance is …

The Sixth Amendment's Textual Core, Sanjay K. Chhablani

College of Law - Faculty Scholarship

The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, broadly requires that defendants be provided seven fundamental procedural protections. Over the course of the past five decades, the scope and meaning of these critical safeguards have undergone tremendous change, with series of expansive and restrictive readings. Through this jurisprudential development, several provisions of the Sixth Amendment have been interpreted in a manner that contravenes the plain meaning of its text, rendering the Amendment far less protective of individual liberty. After developing a comprehensive historical account of the Court’s Sixth Amendment jurisprudence, this Article provides …

Discretionary Persistent Felony Offender Sentencing In New York: Can It Survive Apprendi ?, Joseph E. Fahey

College of Law - Faculty Scholarship

This article examines the Discretionary Persistent Felony Offender sentencing provision contained in New York Penal law section 70.10 and its vitality in the wake of Apprendi v. New Jersey. It examines the disparity in the controlling New York Court of Appeals cases and the holdings in Apprendi and its progeny. It also discusses ways in which the sentencing court can apply the sentnecing statute and avoid Apprendi pitfalls.

The Limits Of Wto Adjudication: Is Compliance The Problem?, Juscelino F. Colares

College of Law - Faculty Scholarship

Mainstream international trade law scholars have commented positively on the work of WTO adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

College of Law - Faculty Scholarship

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Contract Law's Inefficiency, David M. Driesen

College of Law - Faculty Scholarship

Neoclassical economic theory seems to aptly characterize contract law’s essence. Contracts enable two parties to reach a mutually beneficial agreement, thereby facilitating economically efficient transactions. It would seem to follow that the achievement of economic efficiency serves as contract law’s major goal. This article, however, examines an alternative hypothesis, that contract law is about enforcing inefficient bargains in order to provide enough security to facilitate cooperation among economic actors over long periods of time. On this account, contract law manages change over time, rather than achieves static efficiency. While recognizing that parties execute contracts in order to realize an efficient …

Short Of The Goal: New York's Legislation To Compel Hiv Testing From Accused Sex Offenders, Joseph E. Fahey

College of Law - Faculty Scholarship

"Short of the Goal: New York's Legislation to Compel HIV Testing from Accused Sex Offenders" examines New York's newly enacted legislation allowing for such court ordered testing upon the filing of charges and prior to conviction.Although this legislation was designed to augment and improve the existing legislation which allows it only post-conviction, it contains significant flaws which leave it short of its intended result. This article examines the legislation and its flaws.

Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Law, Joseph E. Fahey

College of Law - Faculty Scholarship

This article examines New York's newly enacted sex offender civil commitment law entitled"Sex Offenders Requiring Civil Commitment or Supervision." It examines the statute in detail, commenting on its various statutory and constiutional defeciencies, as well as its potential impact on the New York State Unified Court System.

Slaves In The Family: Testamentary Freedom And Interracial Deviance, Kevin Noble Maillard

College of Law - Faculty Scholarship

This Article addresses the deviance of interracial sexuality acknowledged in testamentary documents. The language of wills calls into question the authority of probate and family law by forcing issues of deviance into the public realm. Will dramas, settled in or out of court, publicly unearth insecurities about family. Many objections to the stated intent of the testator generate from social prejudices toward certain kinds of interpersonal relationships: nonmarital, homosexual, and/or interracial. When pitted against an issue of a moral or social transgression, testamentary intent often fails. In order for these attacks on testamentary validity to succeed, they must be situated …

The Unintended Consequences Of Stanford V. Roche, Ted Hagelin

College of Law - Faculty Scholarship

This article analyzes the recent Supreme Court decision in Stanford v. Roche and concludes that the Court was correct in holding that the Bayh-Dole Act did not change the basic patent law norm that inventors hold initial title to their inventions; but, and more importantly, that the Court was wrong in finding for Roche because there cannot be an assignment of legal title to an invention until the invention is made, a patent application is filed or a patent is issued, and the inventor executes a written patent assignment that identifies the patent application number or patent number associated with …

Rethinking Children As Property, Kevin Noble Maillard

College of Law - Faculty Scholarship

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, I demonstrate that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by the non-marital …

The Color Of Testamentary Freedom, Kevin Noble Maillard

College of Law - Faculty Scholarship

Wills that prioritize the interests of nontraditional families over collateral heirs test courts’ dedication to observing the posthumous wishes of testators. Collateral heirs who object to will provisions that redraw the contours of “family” are likely to profit from the incompatibility of testamentary freedom and social deviance. Thus, the interests of married, white adults may claim priority over nonwhite, unmarried others. Wills that acknowledge the existence of moral or social transgressions—namely, interracial sex and reproduction—incite will contests by collateral heirs who leverage their status as white and legitimate in order to defeat testamentary intent. This Article turns to antebellum and …

Political Advertisements In The Era Of Fleeting Indecent Images And Utterances, Lavonda N. Reed-Huff

College of Law - Faculty Scholarship

Political Advertisements in the Era of Fleeting Indecent Images and Utterances by LaVonda N. Reed-Huff This article is both timely and beneficial to the legal profession in its analysis of the Federal Communications Commission’s (the “FCC”) efforts to craft regulations regarding broadcast indecency and to address the prevalence of increasingly sexually suggestive material in political broadcast advertisements. This five-part article explores the statutory dilemma facing broadcasters who are presented political broadcast advertisements that contain indecent material. This dilemma is presented by the intersection of three federal statutes. One federal statute, 47 U.S.C. § 312, grants candidates for federal elective office …

Technical Standards For Admission To Medical Schools: Deaf Candidates Don't Get No Respect, Michael A. Schwartz

College of Law - Faculty Scholarship

Medical schools utilize a set of technical standards used to screen applicants with disabilities, and one of the standards, which deals with communication, requires the applicant to be capable of speech and hearing. To the extent that medical schools exclude an applicant with a hearing impairment on the ground that the applicant cannot hear and speak, such exclusion would be (and should be) a violation of federal law. Schools must engage in an individualized assessment of how a Deaf medical candidate would satisfy the communication standard. The notion of an “undifferentiated graduate,” where all graduates qualify for practice in any …

The President And The Autopen: It Is Unconstitutional For Someone Or Something To Sign A Bill Outside Of The President's Presence, Terry L. Turnipseed

College of Law - Faculty Scholarship

On May 26, 2011, only hours before three provisions of the Foreign Intelligence Surveillance Act were scheduled to expire, Congress passed an extension. For days, the White House had someone ready to fly to Europe with the legislation in hand for the President to sign, but Congress had been tardy. It seemed quite important to the White House that none of these provisions lapse for any length of time, even the relatively short time it would take to fly from Washington to France. With this urgency as a backdrop, the President was awakened at 5:45 a.m. Central European Time so …

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

College of Law - Faculty Scholarship

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from such a marriage? In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible does it not? The heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is …

Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed

College of Law - Faculty Scholarship

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with his or …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

College of Law - Faculty Scholarship

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

The Count's Dilemma, Or, Harmony And Dissonance In Legal Language, Ian Gallacher

College of Law - Faculty Scholarship

Lawyers have had a long, but ambivalent, relationship with metaphor. Viewed by some as a mere literary device, a trick of language that "adds little of substance to an argument," metaphor is seen by others as an essential component of legal language, a rhetorical device inseparable from thought. On one thing, though, all can agree: lawyers only have words to express their thoughts, so they have an obligation to use words, whether used metaphorically or not, as exactly as possible.

This article offers a critique of the way lawyers meet this obligation when they use metaphors based in musical language. …

Talking In The Dark: Using Technology For Basic Academic Support, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

Whose Rules Rule? Federal Circuit Review Of Divergent Uspto And District Court Decisions, Lisa Dolak

College of Law - Faculty Scholarship

The potential utility of reexamination in the context of patent litigation has caught the attention of litigants, commentators, and the courts. However, concurrent litigation and reexamination proceedings proceed independently. Thus, in any given situation involving such proceedings, there is the possibility that the Federal Circuit will encounter issues in appeals from determinations of the district court and the U.S. Patent and Trademark Office relating to the scope or validity of the same patent claims, which issues have traveled to the court on separate tracks. And, because the courts and the USPTO approach claim construction and validity determinations differently, they can …